November 23rd 2017

Top Stories / National

High Court ruling on returning officers imperils legality of repeat election

The activists had made enquiries from three political parties trying to find out whether they had received the proposed names of persons to be appointed as constituency returning officers for their concurrence, but nothing of the sort had been done.

By Free Press Reporternewsdesk@kenyafreepress.comWednesday, 25 Oct 2017 13:50 EAT

High Court judge George Odunga.

The High Court this morning declared as illegal the process that led to the appointment of constituency returning officers and their deputies. The court, however, could not nullify their appointment since the petitioner in the case did not make that prayer in their application.

But the whole election could be imperilled based on previous rulings that have declared as illegal decisions taken by public officers who were not qualified to undertake the responsibilities of the offices in which they were acting illegally.

Judge George Odunga of the Judicial Review division held that the electoral commission IEBC did not follow the law in appointing and gazetting the 291 constituency returning officers, 290 for elctoral districts and one covering non-resident or diaspora voters.

Ruling in a case filed by the Coast-based Muslims for Human Rights (MUHURI), an NGO, the judge held. "The IEBC did not provide the list of persons proposed for appointment to political parties and independent candidates at least 14 days prior to the proposed date of appointment to enable them make any representations".

Interestingly, the same court had made the law clear prior to the August 8 general elections and IEBC even then did not follow the law. Two MUHURI officials, Hassan Abdi Abdille and Khalif Khalif, sought the court's declaration on the appointment of the officers and a finding that the repeat election is illegal.

The activists had made enquiries from three political parties trying to find out whether they had received the proposed names of persons to be appointed as constituency returning officers for their concurrence, but nothing of the sort had been done.

In its defence, IEBC said it had not flouted the law but had appointed as CROs permanent employees of the commission. The commission said the said officers were first gazetted in May and that a second gazettement was only necessitated by the fact that some of them had been transferred from the constituencies where they served on August 8.

There are many cases where the decisions of officers who are office illegally have been vitiated by the courts. For example, the Court of Appeal recently set free two former cabinet secretaries on corruption charges brought by the Ethics and Anti-Corruption Commission when the commission was not legally constituted.

Former cabinet minister Henry Kosgei was also acquitted of corruption charges when the court held that the prosecutor who had brought his case to court, Patrick Kiage, was not legally appointed into the job. The former prosecutor is currently an Appeal Court justice.

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